Deathscapes

Dispatch Perth - Mohammad Nasim Najafi's Inquest

Deathscapes

Dispatch: Inquest into the Death of Mohammad Nasim Najafi
6th November 2018, Perth Central Law Courts, Courtroom 51
Dispatch by Michelle Bui

Action outside Coroner’s Court, Whadjuk Nyoongar Country (Perth), 2018. Photo: Ayman Qwaider.

 

‘Who killed my son? How did he die?…I want my son back.’ – Mohammad Nasim Najafi’s Mother

 

‘It is as if the entire world becomes against refugees. Yes! That is true. For refugees every situation is associated with pain and suffering.’ – Mohammad Nasim Najafi

 

Mohammad Nasim Najafi arrived in Australia seeking asylum in November 2012. Less than three years later he was dead. Six years after his arrival in Australia, the inquest into his death at the Yongah Hill Immigration Detention Centre was held in Perth. His inquest was the third into a death in custody at a WA detention centre in 2015 to be heard this year. The other inquests were for Fazel Chegeni Nejad a Faili Kurd whose body was found 50m from the perimeter fence of the Christmas Island Detention Centre and Ali Jaffari who died by self-immolation in his room in Eagle compound at Yongah Hill less than two months after Mr Najafi. Mr Najafi was a Hazara man from Hotqool in Afghanistan whose father had been killed by the Taliban when he was a teenager. He was about 27 years old at the time of his death and had been in detention for 1003 days. While his inquest hearing was listed for three days, it concluded on the first. No evidence was heard from anyone who had known Mr Najafi personally or been detained with him. The lawyer representing his mother was a watching brief and raised no questions throughout the proceedings.

The official response from DIBP following Mohammad Nasim Najafi’s death stated:

‘The department can confirm that a male detainee died at the Yongah Hill Immigration Detention Centre on Friday 31 July 2015. There was no indication of suicide or suspicious circumstances. The WA Police attended the centre and is conducting an investigation as per normal practices in such cases.’

At the time of Mr Najafi’s death it was largely unclear how he had died. This resulted in speculation from his friends and members of the broader community as they tried to make sense of his sudden death. The second sentence of the statement provided by the Department creates the impression that he died by natural causes and no other party is at fault. The way the statement is structured is intended to signal to the reader to move on; that there is nothing to see here. This statement reads very similarly to countless others that have been issued following deaths in detention. These statements are detached, formulaic and like a template that is constantly replicated and repurposed. After attending three inquests within the space of 4 months, one cannot help but form the impression that the ‘normal practice’ is actually manufacturing death itself.

The first post-mortem examination conducted in the week following Mr Najafi’s death concluded that the cause of death was undetermined. It wasn’t until after further investigations were undertaken that his death was found in April 2016  to be consistent with an epileptic seizure. Mr Najafi had been diagnosed with epilepsy prior to his arrival in Australia when he was 21 years old. During the period preceding his death he was being prescribed two doses of 300mg of Carbamazapine per day (an anticonvulsant or anti-epileptic drug used to prevent and control seizures).  Neurologist Professor John Dunne, an expert witness, noted that 1 in 50 people will have epilepsy at some time in their life; however about 70% of people, when on consistent medication regimes, can get on with their lives safely as normal. Mr Najafi’s epilepsy was typically well managed, however a correlation was noted between his missing medication and experiencing seizures. In October 2014, after two years without a seizure, he experienced convulsions in a common room in the detention centre. Around the same time he had made a formal complaint about how medication was dispensed by IHMS.

When journalists questioned the Department as to why Mr Najafi remained in detention for such a prolonged period of time, they alluded to security issues. A report by the Commonwealth and Immigration Ombudsman confirms that Mr Najafi was the subject of an intelligence analysis; however it is unclear whether he understood that this was why he remained in immigration detention. It is unlikely that this was ever clearly communicated to him. Indeed, during the inquest it became apparent that on two occasions in 2013 Mr Najafi had expressed concern that he was being kept in detention for a long period because he was taking medication for epilepsy. Professor Dunne suggested that the perception that his ongoing detention was connected to his medical condition could carry a risk of under-reporting seizures.

31 July 2015: ‘If a person is dead in his bed, they would not know because they think he is asleep’

These words, conveyed to journalist Abdul Karim Hekmat by a friend of Mr Najafi’s who was detained with him, eerily foreshadow the evidence of the Serco officer who discovered Mr Najafi in his room. Around 6:30pm on the evening of 31 July, a Serco Detainee Services Officer (DSO) knocked, unlocked and entered Mr Najafi’s single room, S4 of Eagle Compound, to deliver a letter to him. He stated that when he entered the room, he saw Mr Najafi lying face-down on his bed and presumed he was sleeping. He said that Mr Najafi was known to have irregular sleeping habits so it was not unusual for him to be asleep at that time and decided not to disturb him and return later. Around 8:40pm he came back, turned on the light and saw Mr Najafi laying in the same position. He called out to Mr Najafi but there was no response. The DSO then ran his pen along the sole of Mr Najafi’s foot which was hanging off the edge of the bed, but still Mr Najafi did not respond. The DSO said he then shook Mr Najafi’s shoulder; however there was still no response. Mr Najafi’s body by this point was cold and stiff. An IHMS nurse later suggested that it appeared that rigor mortis had set in by the time the Serco officer and medical staff attended to Mr Najafi. At 9:10pm he was pronounced life extinct by St John’s paramedics.

Vigil for Nasim Najafi, Whadjuk Nyoongar Country (Perth), 2015. Photo: Marziya Mohammedali.

Failures in police investigation

A police investigator who gave evidence at the inquest described the situation at the detention centre on the night of 31 July 2015 as ‘tense’. He noted that riot police were called in that night to maintain order with the support of Serco Officers. He also indicated that the dog section was brought on site, but was not deployed. He suggested that video recording of the scene was not conducted by attending officers due to the ‘hostility of the detainees’. He characterised the situation as ‘volatile’, suggested there were threats to officers and that there was potential for civil unrest. Here he presented the narrative that officers did their best in trying conditions and that the detainees had a propensity for violence. No acknowledgement was ever made that in the event that someone – possibly a friend – dies while in the supposed care of the state, protest, distress and anger could be justifiable reactions. Following Fazel Chegeni Nejad’s death on Christmas Island there was a riot in the Christmas Island Detention Centre. In this case, undue emphasis was placed on property damage and reported violent conduct by detainees, while the extreme violence perpetrated against people detained in the centre – which culminated in the death of a person and incited the response of others – was not acknowledged. The criminalisation of witnesses and survivors is a recurring strategy used by the state and its agents following deaths in custody.

It was noted in a police report that a box of 24.5 of 100 Carbamazapine tablets were seized by police in their search of Nasim’s room; however, the police failed to properly document and photograph the box of medication. It remains unknown how Mr Najafi was able to access it when it is not IHMS practice to issue boxes of medication; indeed possession of medication other than in approved webster packs is prohibited. An IHMS nurse confirmed that Carbamazapine is a drug that would only be used to manage epilepsy and would not be used recreationally as other types of drugs can be. While the nurse suggested audits of stock were regularly undertaken, the IHMS Area Medical Director provided evidence that he wasn’t aware of an audit of stock or medication around the time of Mr Najafi’s death and that there wouldn’t necessarily be a red flag raised if a box of Carbamazapine was missing, due to the nature of that drug. The origins of this medication and whether it had expired cannot be verified as a result of poor documentation by police. What is known is that Mr Najafi had low therapeutic levels of Carbamazapine in his system following his death which would indicate it was unlikely that he was substituting his missed doses for those tablets.

Failures of IHMS

Throughout the hearing, counsel for IHMS were the only party to raise any questions to the witnesses. It became clear quite quickly that part of the argument they were trying to establish was that Mr Najafi was largely compliant with his medication regime and therefore the processes that IHMS had in place for dispensing medication were adequate. She strenuously noted every occasion that Mr Najafi collected his medication in an attempt to minimise the significance of times where medication doses were missed. Mr Najafi was known to have a sleeping disorder which meant he had very irregular sleeping patterns and often slept throughout the day and remained awake throughout the night. While Professor Dunne recognised the difficulties that someone with a sleeping disorder may have in attending medication rounds twice per day, counsel for IHMS refused to accept that this might be the case. They suggested that the record of Mr Najafi collecting medication the majority of the time suggested that he managed to do so without difficulty. This is not withstanding Professor Dunne’s assessment that people diagnosed with epilepsy are generally very compliant and committed to their medication regime and recognise the importance of taking their medication, particularly after experiencing seizures. It seems quite clear that Mr Najafi was committed to taking his medication, however his sleep disorder and the rigid and inflexible dispensation processes of IHMS made this difficult for him.

An IHMS nurse who gave evidence stated that in his view, the only type medication you can get away with missing doses of is pain medication, as pain can be independently managed by the client. He stated that as a nurse, any other missed medication would be concerning. Despite this, no one who worked for IHMS appears to have made any effort to follow up or ensure that Mr Najafi received the doses of medication that he required during the week preceding his death.

At the time of Mr Najafi’s death there were three medication rounds per day: between 8-10am, 12-2pm and 7-9pm. The IHMS medical clinic was open 9am-5pm on weekdays with after-hours medical assistance accessible through Serco who could contact a Health Advice Service (HAS) telephone line administered by IHMS. One of the IHMS nurses noted that they previously provided a 24/7 service but at some point down the line the process changed; he expressed criticism of the change and suggested it made it more difficult for both IHMS and Serco staff. FOI documents indicate that after- hours onsite staffing ‘was largely removed under the latest contract to better accord with Australian community health standards and to meet Government expenditure targets. This reduction has been criticised by scrutineers such as the Ombudsman and the Department is monitoring’. On the night of Mr Najafi’s death, the IHMS Nurse opted to attend to the Code Blue that was called instead of continuing the medication round.

For those who were eligible to have their medication dispensed in 7-day webster packs, there was a period between 8:00am and 3pm on Fridays during which they needed to collect them. While Mr Najafi often collected his webster packs, there were several occasions where he attended a day late. Six days before Mr Najafi’s death he attended on the Saturday to collect his webster pack and IHMS staff refused to issue it to him and advised that he had to attend twice daily for the next week to collect his medication. This raises the question of whether he would have had a fatal seizure on 31 July if he had access to a webster pack and had regularly been taking his medication throughout the week.

‘On 16/05/15 at appointment primary health nurse explained if he does not present for weekly webster, he will be denied this privilege’ – note made by nurse

Professor Dunne was critical of the expectation that Mr Najafi would collect medication twice daily and that a webster pack was considered a ‘privilege’. He suggested that to expect someone with a sleeping disorder to present twice daily for medication was ‘not a practical or reliable alternative’ to providing a weekly supply. The Area Medical Director for IHMS (who at the time oversaw the west region but currently oversees the east coast and offshore sites) responded defensively, stating that Mr Najafi seemed to be quite compliant most of the time, and that he did not agree with Professor Dunne’s assessment that it wasn’t a practical option. The punitive approach that IHMS took to dispensing medication to Mr Najafi is a reflection of the kinds of lethal practices that are implemented to manage bodies that are viewed as non-compliant. The seemingly trivial denial of a webster pack arguably contributed to his seizure and subsequent death.

Evidence was heard that following Nasim Najafi’s death IHMS has implemented a process to trigger follow-ups of people who do not present to receive essential medication, arising out of a recommendation from an ABF report. Despite this, counsel for IHMS appeared to be trying to argue that there was nothing wrong with the process or lack thereof that IHMS had in place to begin with. While the IHMS Area Medical Director initially suggested there were some lessons for IHMS following the death, when questioned in respect to a statement made by Professor Dunne who said words to the effect of ‘the fact that there was no apparent process in place to ensure essential medications were dispersed was not satisfactory or reasonable care’, he seemed to back away from this and responded that he did have access to medication rounds and attended some of those rounds.

While Mr Nahafi had not been diagnosed with any chronic or acute mental health issues, it was noted that news of ongoing killings in Afghanistan and his long-term detention sometimes lowered his mood. He was also known to sometimes suffer from headaches. Professor Dunne was of the view that Mr Najafi’s missing medication should have been a red flag for IHMS and should have triggered a review or assessment of his wellbeing, given that it was out of character. Professor Dunne speculated as to whethe irregular attendance to collect medication in the 6 days preceding his death could have been a sign of Mr Najafi’s having given up. In any case he was of the view that IHMS should have attempted to engage with him during this period.

Notably, just weeks before Mr Najafi’s death he reported an assault. Following this report of an assault, which was not discussed in detail during the inquest, he was moved from Hawk Compound to a single observation room in Eagle compound, supposedly for his own safety and security. It was heard that his room was in close proximity to the officers’ station. It is unclear why he was moved as opposed to the alleged perpetrator and whether he was supposed to be subject to any routine watches or checks.

Unnatural Deaths: onshore/offshore

Mr Najafi is not the only man to have died within Australia’s immigration detention system who was affected by epilepsy. Faysal Ishak Ahmed and Salim Kyawning both died while forcibly confined on Manus Island and were reported to be grappling with similar health issues. Faysal Ishak Ahmed was a young Sudanese refugee who died in December 2016 after suffering a seizure and collapsing inside the Manus Island Detention Centre. It was reported that when he fell, he hit his head. He was subsequently flown to Brisbane for medical treatment but died a couple of days later. He had suffered numerous blackouts and collapses over the months preceding his death and repeatedly sought medical assistance.

‘Faysal became unconscious and collapsed over and over again but every time he visited the medical centre the doctor would tell him he was fine. On every occasion he returned empty handed and angry.‘ – Walid

Protest at Border Force following Salim Kyawning’s death, Naarm (Melbourne), 2017. Photo: Charandev Singh.

Salim Kyawning was a Rohingya refugee in his 50s who had frequent seizures. He was reported to suffer from temporal lobe epilepsy that was poorly controlled. Salim Kyawning suicided in May 2018 after struggling to receive support for physical and mental health issues.

‘Salim would at times fall to the ground and begin to tremble. His mouth would foam and he would yell. All the refugees were familiar with his situation. All the staff working in Manus prison, the medical personnel, everyone in the immigration department including the immigration minister, human rights organisations, and the journalists reporting about Manus, they all knew about Salim.

…Like Faysal, Salim was struggling to stay alive. He approached me, indicating to his heart, to his head, trying to tell me that he was afraid he would end up like Faysal.

…Salim had epilepsy. Two years ago immigration decided to transfer him to Australia for treatment. He stayed in Darwin for a while but they exiled him back to Manus while he was still experiencing a great deal of suffering.’  Behrouz Boochani

The deaths of Mohammad Nasim Najafi and Faysal Ishak Ahmed may be viewed by the courts as ‘natural deaths’. Discussions around them are largely medicalised; however it is necessary to avoid the conclusion that these men were going to die regardless of whether they were contained by the detention system or not. These deaths are anything but natural. Dying within detention centre walls is not natural. When someone’s liberty is taken away, and they have no choice in what medical practitioners and other support they can access, those involved in this process owe them a higher duty of care. As Professor Dunne noted, when somebody is in a place of detention, service providers have a responsibility to ensure that medication is dispensed and provided. Until the system of mandatory detention is dismantled, however, deaths and associated inquests will continue.

These inquests of course will examine the minute details surrounding an individual case but fail to place each case in context and acknowledge the intended consequences of detention.

 Final Words

At the conclusion of the inquest hearing the Coroner noted that from her perspective the main issues were the issuing of webster packs, the ‘red herring’ that was the box of medication and whether there was a causal connection between the missed medication and the seizure. She stated that it was a ‘sad case’ and it largely seemed that Mr Najafi’s death could have been prevented if he was taking the required medication– though due to the unpredictability of seizures it was not necessarily entirely so. She noted, as she did in the case of Fazel Chegeni Nejad, who died 54 days after being transferred to the detention centre on Christmas Island, that she would look at his history, but that his prolonged detention was not the focus of her inquest. She noted that it was reassuring that changes had since been made to IMHS procedure to ensure there was some follow-up of people who were required to take essential medication. This brought my mind to a poem that Mr Najafi had shared on Facebook prior to his death, a translation of which reads:

‘There is not enough time, it might be too late when one realises…. But we still don’t believe the reality…. It might be too late when you come to see me…You will not have any other option but to cry at my grave and say that this was the destiny……(Please pray for me dears)’

It was too late when authorities came to see Mr Najafi. It was also too late when IHMS were compelled to change their procedures. Mr Najafi’s community buried him and cried at his grave. Mr Najafi’s mother cried, but cannot visit the grave of her eldest son, who was laid to rest in foreign and unwelcoming soil. In reflecting on Mr Najafi’s words, I consider that if it was his destiny to die, this destiny was one determined by those responsible for his care, who detained him upon his arrival in Australia and refused to fulfil their duty of care to him and ensure that reasonable measures were taken to keep him safe.


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